On Wednesday in New Zealand, a Court of Appeal ruled that the warrants used to seize property belonging to Megaupload founder and CEO Kim Dotcom were legal. The court's decision reversed a 2012 High Court decision in which a chief judge ruled that the warrants were too vague and did not define the parameters of the search and seizure sufficiently.

Since the raid on his New Zealand property in January 2012, Kim Dotcom has been waging legal battles with New Zealand and United States authorities. As Ars reported in 2012, New Zealand police cut their way through locks and into Dotcom's 'panic room,' seized 18 luxury vehicles, secured NZ$11 million in cash from his bank accounts, and grabbed 150TB of data from 135 of Dotcom's digital devices.

Dotcom's legal challenge of the warrants used to seize his property was part of a bid to avoid extradition to the United States where he is wanted to stand trial for copyright and money laundering charges.

In today's ruling, “The court acknowledged there were 'defects' in the warrants, but found these were 'in form not in substance,'” wrote the New Zealand Herald. "The defects in these warrants were therefore not so radical as to require them to be treated as nullities." Dotcom was also ordered to pay 60 percent of the government's legal fees for the appeal.

It wasn't all bad news for Dotcom's camp, however. The Court of Appeal (PDF) did not overturn one part of the High Court decision, which said that New Zealand authorities were wrong to give copies of Dotcom's digital devices to the FBI after they had seized the data. Rather, the New Zealand police ignored the direction “that the seized items, which included mobile phones, USB sticks, and computers, were to remain in the custody and control of the [New Zealand] Commissioner of Police until further direction,” the New Zealand Herald wrote.

In a separate case in the US District Court for the Eastern District of Virginia, Kim Dotcom's lawyers have argued that the warrants that the US obtained to revoke Dotcom's domain names were illegal because the US “planted” evidence on his Megaupload servers. The US has denied that accusation.

In December, US authorities published a 191-page “summary of evidence” against Dotcom, which details why the US believes he should serve jail time. On Twitter, Kim Dotcom's lawyer, Ira Rothken, said Dotcom's legal team was “analyzing today's court of appeal ruling” and had no additional comment.

In today's ruling, “The court acknowledged there were 'defects' in the warrants, but found these were 'in form not in substance,'” wrote the New Zealand Herald. "The defects in these warrants were therefore not so radical as to require them to be treated as nullities." Dotcom was also ordered to pay 60 percent of the government's legal fees for the appeal.

IANA-Kiwi-L, but isn't the general theory of paying legal fees to discourage frivolous lawsuits and appeals? How can this be frivolous if defects were acknowledged in the warrants?

Seems like a part of a coordinated "squeeze the little guy till he quits" tactic.

In today's ruling, “The court acknowledged there were 'defects' in the warrants, but found these were 'in form not in substance,'” wrote the New Zealand Herald. "The defects in these warrants were therefore not so radical as to require them to be treated as nullities." Dotcom was also ordered to pay 60 percent of the government's legal fees for the appeal.

IANA-Kiwi-L, but isn't the general theory of paying legal fees to discourage frivolous lawsuits and appeals? How can this be frivolous if defects were acknowledged in the warrants?

Seems like a part of a coordinated "squeeze the little guy till he quits" tactic.

I agree. Plus, why should he have to pay for the appeal? I can almost understand footing the bill on an outright failed lawsuit, but not for legal fees on the appeal itself.

Form (n) - something that gives or determines shape; a moldSubstance (n) - the actual matter of a thing, as opposed to the appearance or shadow; reality

So the shape of the warrant was defective, but not the reality?

This sounds like pre-judgment:-> Our reasoning for the warrant was flawed including the actions taken, but the evidence proves we were right; so, therefore it was gathered legally. Of course, this neglects to mention that we haven't proven the evidence technically makes him guilty. Our opinion is it shouldn't be nullified, because we say so and we have power.

"Sure, the warrants were written in an overly broad manner, and okay, they ended up giving data illegally to the FBI, and alright there was some illegal spying by our version of the NSA, and the warrant was improperly written, but those are just details. The substance was fine."

I don't know if this is actually what happened, but the late-night conspiracy theorist in me just feels that this is the NZ courts/govt giving in to pressures from the US. I hope it's not, but that's not what my gut is telling me. Or maybe it's saying I should just go to sleep.

I don't know if this is actually what happened, but the late-night conspiracy theorist in me just feels that this is the NZ courts/govt giving in to pressures from the US. I hope it's not, but that's not what my gut is telling me. Or maybe it's saying I should just go to sleep.

Not even. The New Zealand Justice System isn't about to do the U.S. (or Americans, in general) any favours.

I don't know if this is actually what happened, but the late-night conspiracy theorist in me just feels that this is the NZ courts/govt giving in to pressures from the US. I hope it's not, but that's not what my gut is telling me. Or maybe it's saying I should just go to sleep.

Not even. The New Zealand Justice System isn't about to do the U.S. (or Americans, in general) any favours.

The kiwi system of law is fickle and a changeable thing.

Sort of. NZ justice system follows spirit of the law rather than letter of the law. Judges are authorized to say "This is stupid. Get out of my court room. Oh and pay the court fees on the way out."

It has it's advantages like you tend to get less insane patent troll issues.

Form (n) - something that gives or determines shape; a moldSubstance (n) - the actual matter of a thing, as opposed to the appearance or shadow; reality

So the shape of the warrant was defective, but not the reality?

This sounds like pre-judgment:-> Our reasoning for the warrant was flawed including the actions taken, but the evidence proves we were right; so, therefore it was gathered legally. Of course, this neglects to mention that we haven't proven the evidence technically makes him guilty. Our opinion is it shouldn't be nullified, because we say so and we have power.

There is a idea that if the cops do find evidence against you and they were acting in "good faith" then even if the warrant was not that great, its okay, because you're a bad guy.

As a Canadian, I can cite R v Evans where the search method was no longer allowed any more due to infringing the constitution, but an exception was given in the specific case because the cops did find evidence. Basically, as long as cops are acting in good faith, they can keep any evidence they get since 'you"re' the bad guy. There's some other case law but I can't recall them right now.

Basically in this case my reading is that the way the warrant was worded/given was flawed but the evidence supporting the warrant and the idea behind it was sound. So I guess the cops get a free pass this time.

About 30-60% of Canadian warrants should actually not have been issued. There is actually a lot that needs to be done to make sure judges issue warrant properly. I'll expect something similar is happening elsewhere as well.

Form (n) - something that gives or determines shape; a moldSubstance (n) - the actual matter of a thing, as opposed to the appearance or shadow; reality

So the shape of the warrant was defective, but not the reality?

This sounds like pre-judgment:-> Our reasoning for the warrant was flawed including the actions taken, but the evidence proves we were right; so, therefore it was gathered legally. Of course, this neglects to mention that we haven't proven the evidence technically makes him guilty. Our opinion is it shouldn't be nullified, because we say so and we have power.

There is a idea that if the cops do find evidence against you and they were acting in "good faith" then even if the warrant was not that great, its okay, because you're a bad guy.

As a Canadian, I can cite R v Evans where the search method was no longer allowed any more due to infringing the constitution, but an exception was given in the specific case because the cops did find evidence. Basically, as long as cops are acting in good faith, they can keep any evidence they get since 'you"re' the bad guy. There's some other case law but I can't recall them right now.

Basically in this case my reading is that the way the warrant was worded/given was flawed but the evidence supporting the warrant and the idea behind it was sound. So I guess the cops get a free pass this time.

About 30-60% of Canadian warrants should actually not have been issued. There is actually a lot that needs to be done to make sure judges issue warrant properly.

But that 30-60% is the reason for the "fruit of the poisonous tree" argument. If the government gets a free pass every time they "could" have gotten a valid warrant but didn't, then they'll never bother to do things the right way. Making the invalid way the de facto "right" way. I realize it's not your argument, but the idea that warrants that are invalid on their face can still be considered valid is a terrible, terrible argument.

For some context (at least, as I understand it having skimmed through the judgement):

All warrants must list the offense that the warrant is being executed for, so both the police and the person the police are executing a warrant against can know the specific scope of the items the police are allowed to seize, The warrant Dotcom was served had "Breach Of Copy Right" (sic) listed as the offense.

The High Court ruled that as the warrant did not refer to the specific laws Dotcom was charged under and instead a general concept, the scope was too large and that Dotcom would not know the specific charges against him. They also ruled that the warrant describing the collection of data from all computers and storage devices from the premises was too broad, as it may contain unrelated materials.

The Appeals Court felt this interpretation was too strict, and that Dotcom would have reasonably known if items seized weren't relevant; even if the main body of the warrant was broad, the supplementary information provided with it was not. Appendix A of the search warrant specifies all documents and things related to “the reproduction and distribution of copyrighted works, including, but not limited to, motion pictures, television programs, musical recordings, electronic books, images, video games and other computer software” and to “records and things ... relating to the activities of the Mega Conspiracy, including, but not limited to, Megaupload, Megavideo, and Megastuff Limited”. Additionally, Dotcom was served his arrest warrant before he was served the search warrant, which means he would have been aware of the charges before him. Once he'd read the full text of both warrants, an officer described the search warrant as seizure of evidence related to the charges before him.

(Additionally, even the original judge agreed that nothing was taken that wouldn't have been taken had the warrant been in the correct format).

New Zealand law says a warrant would only be deemed invalid if the issues with it were so egregious that they would cause a miscarriage of justice. The Appeals Court is, in essence, saying that the information required was all there, just not in the correct format, and thus it does not count as a miscarriage of justice.

Form (n) - something that gives or determines shape; a moldSubstance (n) - the actual matter of a thing, as opposed to the appearance or shadow; reality

So the shape of the warrant was defective, but not the reality?

This sounds like pre-judgment:-> Our reasoning for the warrant was flawed including the actions taken, but the evidence proves we were right; so, therefore it was gathered legally. Of course, this neglects to mention that we haven't proven the evidence technically makes him guilty. Our opinion is it shouldn't be nullified, because we say so and we have power.

There is a idea that if the cops do find evidence against you and they were acting in "good faith" then even if the warrant was not that great, its okay, because you're a bad guy.

As a Canadian, I can cite R v Evans where the search method was no longer allowed any more due to infringing the constitution, but an exception was given in the specific case because the cops did find evidence. Basically, as long as cops are acting in good faith, they can keep any evidence they get since 'you"re' the bad guy. There's some other case law but I can't recall them right now.

Basically in this case my reading is that the way the warrant was worded/given was flawed but the evidence supporting the warrant and the idea behind it was sound. So I guess the cops get a free pass this time.

About 30-60% of Canadian warrants should actually not have been issued. There is actually a lot that needs to be done to make sure judges issue warrant properly.

But that 30-60% is the reason for the "fruit of the poisonous tree" argument. If the government gets a free pass every time they "could" have gotten a valid warrant but didn't, then they'll never bother to do things the right way. Making the invalid way the de facto "right" way. I realize it's not your argument, but the idea that warrants that are invalid on their face can still be considered valid is a terrible, terrible argument.

Not my idea but my Supreme Court has embraced it...Canadian law has a saying where 8 (part that guarantees constitutional protections) + 24 (section with remedies) = 0 since the courts generally allow a one time pass for the police. It's very frustrating. What is the point of having protections if they are never enforced?

A more through reading of the judgement seems that the issuing judge failed epically in writing up the warrants and did not adhere to guidelines. The High Court judge found the errors to be big enough to invalidate the warrant but Appeals court doesn't think so. AG says that the errors are remedied by combining the arrest and search warrants. HC said no since you can't have patchwork warrants (Supreme Court of Canada agrees) but AC apparently thinks it's enough. I would say on the face of the warrants, a legally trained person would understand them to the extent the guidelines expect them to but not everyone would. Also patch work is always bad since it fails the law. Why have the law if you just ignore it? Also AC did not make this a one time exception, rather they left it open, making for bad case law.

I find the reasoning the Appeals court gives to order Dotcom to pay AG's legal fees weird. Basically goes along the lines that since Dotcom was challenging the warrant structure and failed, he needs to be punished for questioning. This part I really have no idea how they came up with.

In today's ruling, “The court acknowledged there were 'defects' in the warrants, but found these were 'in form not in substance,'” wrote the New Zealand Herald. "The defects in these warrants were therefore not so radical as to require them to be treated as nullities." Dotcom was also ordered to pay 60 percent of the government's legal fees for the appeal.

IANA-Kiwi-L, but isn't the general theory of paying legal fees to discourage frivolous lawsuits and appeals? How can this be frivolous if defects were acknowledged in the warrants?

Seems like a part of a coordinated "squeeze the little guy till he quits" tactic.

I agree. Plus, why should he have to pay for the appeal? I can almost understand footing the bill on an outright failed lawsuit, but not for legal fees on the appeal itself.

It's weird. Simply put, the government could have avoided those fees by not appealing. How is that Dotcom's fault?

For some context (at least, as I understand it having skimmed through the judgement):

All warrants must list the offense that the warrant is being executed for, so both the police and the person the police are executing a warrant against can know the specific scope of the items the police are allowed to seize, The warrant Dotcom was served had "Breach Of Copy Right" (sic) listed as the offense.

The High Court ruled that as the warrant did not refer to the specific laws Dotcom was charged under and instead a general concept, the scope was too large and that Dotcom would not know the specific charges against him. They also ruled that the warrant describing the collection of data from all computers and storage devices from the premises was too broad, as it may contain unrelated materials.

The Appeals Court felt this interpretation was too strict, and that Dotcom would have reasonably known if items seized weren't relevant; even if the main body of the warrant was broad, the supplementary information provided with it was not. Appendix A of the search warrant specifies all documents and things related to “the reproduction and distribution of copyrighted works, including, but not limited to, motion pictures, television programs, musical recordings, electronic books, images, video games and other computer software” and to “records and things ... relating to the activities of the Mega Conspiracy, including, but not limited to, Megaupload, Megavideo, and Megastuff Limited”. Additionally, Dotcom was served his arrest warrant before he was served the search warrant, which means he would have been aware of the charges before him. Once he'd read the full text of both warrants, an officer described the search warrant as seizure of evidence related to the charges before him.

(Additionally, even the original judge agreed that nothing was taken that wouldn't have been taken had the warrant been in the correct format).

New Zealand law says a warrant would only be deemed invalid if the issues with it were so egregious that they would cause a miscarriage of justice. The Appeals Court is, in essence, saying that the information required was all there, just not in the correct format, and thus it does not count as a miscarriage of justice.

A commentator that read the article, supporting articles, and understands the issue before commenting? This is unheard of. Unprecedented.

First off, I Am Not A Lawyer (yet), nor am I a kiwi. I do have some legal qualifications, but I am not admitted to practice. These qualifications are not related to either the NZ or US legal systems, however, so this is posted as an informed layman.

A lot of people have commented on the fact that there was a costs order included in the judgement. I know that Ars is a predominantly US site, and so most of these people are likely to be primarily familiar with the US legal system. While both NZ and the US have Common Law systems, they do differ in quite a few ways. AFAICT, costs are one of these.

In the US costs orders are only issued in limited circumstances and are somewhat seen as a punishment. The normal result of a case is that both parties are responsible for their own costs. This is known as the American rule.

In England (and most Common Law countries), however, things are handled a little differently. There they have a loser pays rule, although for a variety of reasons the actual amount that the loser has to pay is usually less than the full amount of fees due to the winner. Having to pay their ACTUAL costs is used as a punishment in much the same way that having to pay costs is used in the US. This is known as the English rule, and is followed in most Common Law systems, including (AFAICT), NZ. Being ordered to pay costs is not really noteworthy in these systems, it's just the normal result of losing a case.

For those who think that this is unjust, consider this: if I get sued by someone and win, why should I have to pay to defend myself against their false (or at least invalid) claim? On the other hand, if I sue someone and win, why should I have to pay to vindicate my rights?

[EDIT]: Just to be clear, it is entirely possible that the Costs order goes beyond that normally given and is indeed punitive. Not being a NZ lawyer, I don't know the full significance of "The respondents are to pay 60 per cent of the costs of the appellant for a standard appeal on a band A basis. We certify for two (not three) counsel."

If I were to guess, this looks like a standard costs award format. It could be punitive, but I doubt it. The rest of the judgement doesn't indicate the type of misconduct that typically results in increased cost awards, and the judge notes that Dotcom did have some measure of success on some issues. This is all pure speculation, though.

The Old Bill does do alot of "reactive" policing. Esp up here in Auckland. And it's so nice we now have a floor full of NSA agents here to tell Key what to say and what not to do. I hope Kiwis see some sense come election day. Despite the americans poking their hats around every corner, Spy versus Spy style here atm, I do feel this has the mark of the personal vendetta written all over it, esp given this latest turn-around. '"The U.Eth. told me to" indeed.

I don't know if this is actually what happened, but the late-night conspiracy theorist in me just feels that this is the NZ courts/govt giving in to pressures from the US. I hope it's not, but that's not what my gut is telling me. Or maybe it's saying I should just go to sleep.

Not even. The New Zealand Justice System isn't about to do the U.S. (or Americans, in general) any favours.

Considering that we know for a fact that the US wire taps lawyers, what possible argument could one conceive that anyone facing the US Justice Department is going to get a fair trial? That alone should be grounds for dismissal.

For some context (at least, as I understand it having skimmed through the judgement):

All warrants must list the offense that the warrant is being executed for, so both the police and the person the police are executing a warrant against can know the specific scope of the items the police are allowed to seize, The warrant Dotcom was served had "Breach Of Copy Right" (sic) listed as the offense.

The High Court ruled that as the warrant did not refer to the specific laws Dotcom was charged under and instead a general concept, the scope was too large and that Dotcom would not know the specific charges against him. They also ruled that the warrant describing the collection of data from all computers and storage devices from the premises was too broad, as it may contain unrelated materials.

The Appeals Court felt this interpretation was too strict, and that Dotcom would have reasonably known if items seized weren't relevant; even if the main body of the warrant was broad, the supplementary information provided with it was not. Appendix A of the search warrant specifies all documents and things related to “the reproduction and distribution of copyrighted works, including, but not limited to, motion pictures, television programs, musical recordings, electronic books, images, video games and other computer software” and to “records and things ... relating to the activities of the Mega Conspiracy, including, but not limited to, Megaupload, Megavideo, and Megastuff Limited”. Additionally, Dotcom was served his arrest warrant before he was served the search warrant, which means he would have been aware of the charges before him. Once he'd read the full text of both warrants, an officer described the search warrant as seizure of evidence related to the charges before him.

(Additionally, even the original judge agreed that nothing was taken that wouldn't have been taken had the warrant been in the correct format).

New Zealand law says a warrant would only be deemed invalid if the issues with it were so egregious that they would cause a miscarriage of justice. The Appeals Court is, in essence, saying that the information required was all there, just not in the correct format, and thus it does not count as a miscarriage of justice.

Great post - kudos to you sir. This information probably deserved its own section in the main article, to be honest. But then I guess we'd lose the outrage (!) in the comments section.

In England (and most Common Law countries), however, things are handled a little differently. There they have a loser pays rule, although for a variety of reasons the actual amount that the loser has to pay is usually less than the full amount of fees due to the winner. Having to pay their ACTUAL costs is used as a punishment in much the same way that having to pay costs is used in the US. This is known as the English rule, and is followed in most Common Law systems, including (AFAICT), NZ. Being ordered to pay costs is not really noteworthy in these systems, it's just the normal result of losing a case.

For those who think that this is unjust, consider this: if I get sued by someone and win, why should I have to pay to defend myself against their false (or at least invalid) claim? On the other hand, if I sue someone and win, why should I have to pay to vindicate my rights?

Thank you, that was an excellent overview of what the fee award meant.

That said, hate it. This has to have a chilling effect on otherwise meritorious cases, since only one party can win, even if both have a plausible interpretation of the law. In fact, the more meritorious and subtle a case, and the more (legitmate) appeals it goes through, the more those costs are eventually going to add up for that fee award against the loser. Thus a 50% fee on a case that goes all the way to the Supreme Court and gets decided on Constitutional grounds and becomes defining case law hurts the loser way more than a joke case that gets thrown out in District with a 100% fee award, especially as he's paying for his own representation.

The cynic in me asks this: would judges ever impose on lower judges the same sort of automatic costs fee if an appeal was decided on legal defects in the lower ruling? "Case only went to appeal because lower judge has fundamental misunderstanding of the law, he must pay 50% of trial costs. Isn't fair to have to have plaintiff and defendant pay for an appeal that should have been decided properly in District Court"

Frivolity fee-awards seem fairer. Professoinal representation is the cost of living in a legal society.

On the issue on costs I would also point out that according to the standard cost scale, that 60% would likely work out to being less than $10,000 - so really not a big deal (compared to actual costs).

In regard to the decision, there has been progress in New Zealand to introduce a bit more common sense into the law, such as the move to common language for statutes. As a partial respite from bureaucrats, the 'Interpretation Act' makes it clear that you don't have to use a prescribed form as long as you have provided the right information.

To invalidate the warrant in this case would really be on the basis of a 'technicality', which the Court of Appeal obviously wasn't keen on. It works both ways of course, and I think it is only reasonable that the Courts apply the spirit of the law when appropriate.